Did Military Use Spy Planes to Illegally Track Times Square Terrorist?

Everyone is very glad that U.S. officials caught Times Square would-be terrorist Faisal
Shahzad with moments to spare. Authorities
say they tracked him by his pre-paid cell phone,
but they won't specify how. But what if the military used high-flying,
communications-sensing spy planes to track the phone? If so, it could
violate the Posse Comitatus Act, which
since 1878 has made it illegal for the U.S. military to join in a
domestic law enforcement operation. It could also potentially conflict
with laws against spying on U.S. citizens. Some reports say that the
military's RC-12 spy plane was used to follow Shahzad in the hours
before his arrest; the White House denies the aircraft was deployed.
Here's the debate about what happened and what it could mean.

The
Initial Report CBS News' Marcia Kramer initially
reported, "In the end, it was secret Army intelligence planes that
did him in. Armed with his cell phone number, they circled the skies
over the New York area, intercepting a call to Emirates Airlines
reservations, before scrambling to catch him at John F. Kennedy
International Airport." The article was originally titled "Army
Intelligence Planes Led To Suspect's Arrest." However, the title was
changed and her paragraph about the "Army intelligence planes" has since
been removed from the article.

A
US Special Operations Force source told me that the planes [used in New
York] were likely RC-12s equipped with a Guardrail
Signals Intelligence (SIGINT) system
that, as the plane flies overland "sucks up" digital and electronic
communications. "Think of them as manned drones. They're drones, but
they have men sitting in them piloting them and they can be networked
together," said the source. ... "We've got these things in Jalalabad [Afghanistan]. We
routinely fly these things over Khandahar. When I say everything, I mean
BlueTooth would be effected, even the wave length that PlayStation
controllers are on. They suck up everything. That's the point."

Why
It Might Go Unnoticed Wired's Noah Shachtman explains,
"From the ground, they could easily be mistaken for an executive
aircraft. The RC-12 is based on the Hawker-Beechcraft King Air
B200 suit-carrier. And while earlier versions of the aircraft were covered in odd-looking antennas, the
latest aircraft are far less conspicuous. Variants of the planes are at
the center of 'Project
Liberty,' a crash project by the Air Force to send more airborne
spies to Afghanistan." But he wonders, "Exactly why Army SIGINT planes
would be required — as opposed to, say, the NSA’s industrial strength
signal-swallowers that are almost undoubtedly able to pick up Big
Apple-area communications — is unclear."

'Would Not Be
Unprecedented' The Atlantic's Marc Ambinder says the White
House denies the reports. However, "Using Pentagon resources and
equipment to assist law enforcement on terrorism investigations would
not be unprecedented. RC-12Q aircraft ... were tasked to help the F.B.I.
intercept cell phone communications of the Beltway sniper suspects in
2002. Just who operated those airplanes has never been identified,
because their sensor platforms require special expertise. RC-12s were
also in the air over Salt Lake City during the Olympics."

How
Often Is This Done? Liberal blogger Rayne worries, "How often has this 'sniffing' function
been used over American soil? ... And if this can be done with a
plane today, will law enforcement do this soon using drones?"

Would
Explain Why They Never Really Lost Him The Nation's Jeremy Scahill reflects
on the FBI's admission that they lost track of Shahzad for some time
before miraculously finding him again. "It could be that the Feds lost
track of Shahzad, but that other US forces, namely US military special
operations forces (perhaps JSOC), were tracking him and waiting to see
if he made any calls, met with any contacts, took any action while he
was still a free man. Consider the confidence of Attorney General Eric
Holder, who said
bluntly: 'I was never in any fear that we were in danger of losing
him.' Those could be the words of a man trying to downplay what could
have been a major FBI failure that, in part, would have played badly for
Holder. Or they could be the honest words of a man who knew it was all
being taken care of and how."

Getting Around Posse Comitatus
Wired's Noah Shachtman points out that there are "all sorts of
caveats" that allow the military to get around the Posse Comitatus Act
forbidding their domestic involvement. "Military can help law
enforcement stop drug-runners. The armed services can be called in if
there’s a potential nuclear, chemical, or biological 'weapon of mass
destruction.' And none of the restrictions apply to the Coast Guard or
the National Guard. In 2008, the Mississippi Air National Guard began
training pilots and sensor operators to man an expanded fleet of
RC-12s."

This article is from the archive of our partner The Wire.

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